GSB#2012-1779

UNION#2012-0999-0031

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Training, Colleges and Universities)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel

HEARING

May 14 & November 26, 2013

Decision

1The union has filed a policy grievance dated July 19, 2012. The following document titled “Agreed Statement of Facts” was filed together with several documents, but no viva voce evidence was called.

1. OPSEU filed a policy grievance after receiving notice from the Ministry of Training, Colleges and Universities (“MTCU”) and the Ministry of Education (“MEDU”) that they were changing their practice with respect to their provision of formal disclosure to OPSEU of increases in complements within these two Ministries.

2. An increase in complement means an increase in staffing levels.

3. Notice of MTCU and MEDU’s change in practice was provided by the Employer to OPSEU on July 9, 2012, and became effective July 23, 2012. Notice was provided in letters from Ms. Pat MacDonald-Rae, the Management MERC Co-Chair for both MTCU and MEDU, to the OPSEU MERC CO-Chairs for MTCU (Ms. Mickey Riccardi) and MEDU (Mr. Chris Cormier). The letters, dated July 9, 2012, stated that the Ministry would “cease its practice of providing formal disclosure of increases in complements effective July 23, 2012”. Ms. MacDonald-Rea stated in her letters that this decision was “in keeping with other ministries’ practices” as well as the collective agreement.

4. On July 19, 2012, the Union filed a policy grievance which stated:

STATEMENT OF GRIEVANCE

The Union grieves a violation of the Collective Agreement, including but not limited to Articles 1.4 & 1.8 & 2. The Employer has asserted it will no longer provide the Union with formal disclosure of increases in complement.

SETTLEMENT DESIRED

Full redress including but not limited to:

An order to comply with the Collective Agreement provisions to notify the Union of increases in complement.

5. Articles 1.4 and 1.8 of the OPSEU Collective Agreement (2009-2012) state:

1.4 Where the Employer establishes a new classification or creates a new position, within an existing class, the Employer shall provide the Union with a copy of the class standard and/or position description, including bargaining unit status (if applicable), at the relevant MERC.

1.8 For clarity, the Employer agrees that any new positions or any new classifications of employees not excluded pursuant to Article 1.1, Article UN 1.1 and Article COR 1.1 will be placed in a bargaining unit represented by OPSEU.

6. Article 1.4, cited above, has formed part of the parties’ collective agreements since the 2005-2008 collective agreement. Article 1.8, cited above, has formed part of the parties’ collective agreements since the 2009-2012 collective agreement.

7. Currently, the Employer provides a variety of disclosure to OPSEU, which includes but is not limited to providing OPSEU, on a weekly basis, a list of all vacancies in OPSEU bargaining unit positions in the OPS, as well as a list of all OPSEU surplus employees. OPSEU also has access to all job postings, and OPSEU is copied on all hire letters involving OPSEU-represented positions.

8. OPSEU’s position in this policy grievance is that the Employer’s disclosure obligations under Article 1.4 apply where there is an increase in complement. OPSEU’s position is that the creation of a “new position” includes, but is not limited to, an increase in complement with respect to a pre-existing, established position.

9. The Employer’s position in this policy grievance is that an increase in staffing levels with respect to a pre-existing, established position does not constitute the creation of a “new position” within the meaning of Article 1.4.

2Despite its wording, it was agreed that the grievance is only about the proper interpretation of article 1.4. The union takes the position that the employer’s obligation under article 1.4 to provide disclosure at the relevant MERC level “where the employer …. creates a new position, within an existing class”, applies where there is an increase in the complement of an existing position. The employer disagrees and submits that the disclosure obligation arises only where it creates a new position which did not previously exist.

3Mr. Giles for the union pointed out that the Ontario Public Service is extremely large and diverse. It is very important for the union to be aware of what was going on in the OPS. Without information about what changes were taking place in the whole OPS in terms of creation of new classifications, positions, as well as contraction and expansion of staffing levels, it is very challenging for the union to properly represent its members. He submitted that increases and decreases in complement of existing positions impact on the funding available to the employer, which in turn may affect OPSEU’s interests.

4The union submitted that the fact that the employer changed its practice in order to be consistent with the practice at other ministries is irrelevant. The fact that other ministries have interpreted article 1.4 in a certain way, does not make it the right interpretation. Mr. Giles pointed out that the term “new positions” is used elsewhere in the collective agreement. Article 6 is titled “Posting and filling of vacancies or new positions”, and under article 6.1.1 the employer is obligated to post “a new regular position in the bargaining unit”. Clearly, the obligation to post under that provision applies to positions which had not previously existed, as well as to positions that become available as a result of an increase in the complement of an existing position. Reference was also made to article 31A.15.1.1 which requires conversion of fixed-term positions to positions in the regular service when certain conditions are met. This article requires the Ministry to “establish a position within the regular service”, and its application results in the increase in the complement of the position in question. Reliance was placed on Re OPSEU (Conversion Grievance) 461/96 etc. (Briggs) where the Board held that where an unclassified position is converted to a position in the regular service under article 3.15.1.1 (as it then was), and there was no incumbent in the converted position, it must be posted under article 4.1 as “a new classified position” created in the bargaining unit.

5The union submitted that where a position had not been previously funded, it is a “new position” within the meaning of article 1.4. He acknowledged that under the union’s interpretation, the employer would be required to make the disclosure not only with respect to any increase in complement in Regular Full Time and Fixed Term positions in the OPSEU bargaining unit. Any increase in complement in positions within other bargaining units, or excluded positions, would also trigger the disclosure obligation under article 1.4. He acknowledged that “it would mean a lot of work for the employer”. However, he submitted that the parties have determined that to be necessary, to allow the union to be able to properly monitor the expansions or contractions occurring within the OPS.

6Counsel for the employer made several arguments in support of his position that the words “new position” in article 1.4 do not capture increases in the number of existing positions. Numerous authorities were cited as to the proper cannons of interpretation of collective agreements. Arbitral decisions interpreting various collective agreements as to what constitutes “a new position” were also relied upon. While I have carefully reviewed those authorities and counsel’s submissions, I will not review all of them in this decision. The appropriate cannons of interpretation of collective agreement are not a matter of contention between the parties. The case law, that is the Briggs decision (supra) relied upon by the union, as well as the arbitral jurisprudence cited by the employer, were concerned with what may or may not constitute a new position for purposes of rights and obligations under different provisions in different collective agreements. None were concerned specifically with article 1.4 of the collective agreement between these parties, or even with disclosure of information upon creation of new positions generally. Therefore, they are of no assistance in interpreting the provision before me. It is not appropriate nor possible to come up with a universal definition of “new position” that would apply to those words in any provision of a collective agreement. As Brown and Beatty, Canadian Labour Arbitration (4th Edition) write at 4:2150, “The context in which words are located is critical to their meaning. Thus, it is said that the words under consideration should be read in the context of the sentence, section and agreement as a whole”. (Footnotes omitted).

7Brown and Beatty, (supra) at 4:2100 also write as follows:

When faced with a choice between two linguistically permissible interpretations, however, arbitrators have been guided by the purpose of the particular provision, the reasonableness of each possible interpretation, administrative feasibility, and whether one of the possible interpretations would give rise to anomalies. (Footnotes omitted)

8The Board agrees with the employer that when the words “new position” in article 1.4 are read in accordance with those principles, its interpretation is to be preferred. First, article 1.4 is located under the heading “Recognition”. Articles 1.1, 1.2, and 1.3 which immediately precede article 1.4, set out and clarify the scope of the union’s bargaining unit and the coverage of the collective agreement. They are about the scope of the union’s representation rights. Therefore, it is logical that article 1.4 would address circumstances where positions which hitherto had not existed are created, to allow the union to determine whether it would claim representation rights over those positions.

9It is also significant that article 1.4 imposes the disclosure obligation where the employer creates a new position, “within an existing class”. This recognizes the distinction between “ a position” and “a class”. “A class” could, and often does, include a number of different “positions”. If the parties intended the article to apply to increases in the number of existing positions, it would have been unnecessary to use the words “within an existing class”. Their use indicates that the parties were addressing circumstances where the employer adds new positions to an existing class, not situations where there is an increase in the number of existing positions.

10I also agree with employer counsel that the union’s interpretation leads to unreasonable and absurd results. The disclosure obligation on the employer under article 1.4 is to “provide the union with a copy of the class standard and/or position description”. Under the union’s interpretation whenever the complement of any existing position is increased even by one, the employer would be required to provide that information to the union. In the Board’s view, this is an absurd and unreasonable result, which the parties would not have contemplated. First, where the position added already exists, and is in the union’s bargaining unit, the union would already have access to the class standard and position description attached to that position. The employer then would be required to carry out disclosure of documentation, with associated costs of time and financial resources, that is already readily available to the union. Where for example 10 positions of Data Entry Clerk already exist within the union’s bargaining unit, and the employer adds an eleventh position, it makes absolutely no sense why there would be any need for the union to be formally provided with copies of the class standard or the position description for that position. The parties would not have intended that.

11Similarly, the union’s interpretation of article 1.4 results in a significant volume of work on the part of the employer, as Mr. Giles acknowledged. It results in expenditure of resources including time and money. Article 1.4 does not qualify the term “new position”. The union conceded that in view of the absence of such limiting language, under its interpretation the disclosure obligation would apply to increases in the complement occurring anywhere in the OPS. This would include addition to existing categories of positions within bargaining units represented by other unions, as well as positions excluded as management or confidential, or excluded professional categories such as lawyers. For example, if a ministry decides to increase its complement of Employment Relations Consultants who are excluded from collective bargaining, from 5 to 6, it would be required to provide the class standard and/or position description for the position of Employment Relations Consultant to the union. Mr. Giles’ made a general assertion that it is useful for the union to know about any increases and decreases in the size of the OPS in order to properly represent its members. However, there was no explanation as to how class standards or position descriptions of positions already within bargaining units of other bargaining agents or positions already excluded would possibly assist the union in representing its members, merely because of an increase in the complement of such positions. On the other hand, it is easy to understand why that disclosure is useful and necessary where a new position that did not previously exist is created. It allows the union to review the class standard and position description which the union would not be familiar with, and determine if it ought to claim the newly created position as falling within its bargaining unit.

12In conclusion, when article 1.4 is read in the context of the whole of the recognition article where it is located, and when the cannons of interpretations referred to at para. 7 (supra) are applied, the preferable interpretation is that it has no application in situations of increases in complement of an existing position. Accordingly, the grievance is hereby dismissed.